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Joseph A. Neuberger
Neuberger & Partners LLP
Criminal Defence Lawyers
In a number of recent sexual assault cases, trial judges have been asked to find an accused guilty based on his own evidence. The Crown argument has been that, by the accused’s own testimony, they failed to take reasonable steps to obtain affirmative consent prior to engaging in a sexual act.
In R. v. M.F., 2020 ONSC 5061 Justice Varpio articulated the submission as such:
“In the alternative, the Crown submitted that the accused’s own evidence is effectively a confession that a sexual assault occurred on the night of March 17/18, 2018. I should convict him as a result of same. The Crown further submitted that the accused’s testimony that the complainant said nothing prior to sexual activity on the night of March 17, 2018 corroborates that she did not, in fact, consent.”
Justice Varpio goes on to outline the guiding case law from the Supreme Court on consent, pointing out that, based on Ewanchuk, “The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct” and that if the trial judge finds the Crown has not proven non-consent then the reasonable steps question is not engaged.
In a section titled “Consent as Elements of the Actus Reus and Mens Rea: Do They Affect One Another in Sexual Assault Cases?” Justice Varpio adopts the reasoning of the Court Martial Appeal Court in finding that “the actus reus and mens rea elements of sexual assault are discrete inquiries such that a defence of honest but mistaken belief in communicated consent that has no air of reality does not, by itself, prove the “lack of consent” element of the actus reus.”
Put another way, M.F. clarifies that “as per Barton, the Crown must prove the lack of consent requirement of the actus reus, irrespective of the mens rea requirements.” A failure by the accused to take reasonable steps to confirm consent does not undermine a finding that the complainant may have consented.
Though this failure will be fatal to a claim of honest but mistaken belief in consent, the trial judge will only move to that analysis if the Crown first proves non-consent.
In another, earlier case, R. v. Solomon, 2020 ONSC 2640, the Crown had appealed on a similar issue. While the Crown argued on appeal that the trial judge in Solomon had made a finding that the complainant consented on two occasions, Justice Copeland corrected that interpretation to state the trial judge had “found that the Crown had not proven non-consent beyond a reasonable doubt.”
One section in the Solomon ruling was titled “Did the Trial Judge err in not finding that the events on the couch constituted a sexual assault, even on the respondent’s evidence?”
Ultimately, Justice Copeland found that the trial judge’s reasons as a whole explained how he reached the conclusion that there was consent. “The discussion in Ewanchuk about not ‘testing the waters’ is clear that it does not displace the law that consent can be conveyed by words or gestures.”
In both decisions, Ewanchuk was cited as the current guideline regarding the evaluation of consent or non-consent and that no subsequent ruling has altered the requirement that the Crown must prove non-consent before engaging the reasonable steps question.
The addition of “communicated consent” to the judicial lexicon did not change the law to require verbal consent. Nor has the complainant’s evidence been excluded from the required credibility assessments.
A finding of consent or reasonable doubt about consent resolves the primary question at trial.
As one Alberta judge recently stated in R. v. K.G.Y., 2020 ABPC 227: “If a person is agreeing in their mind that an act is acceptable, absence of spoken or physical demonstration of that consent would not turn the action illegal.”
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